NJ Appellate Court Affirms Decedent’s Capability of Executing An Enforceable Will, Despite Having Mild Dementia

In the Matter of the Estate of Alfred Finocchiaro, Sr., WL 5898592,
No. A-4532-14T1 (N.J. Super. Ct. App. Div. Nov. 30, 2017).

This matter was on appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County. Judge Fuentes, Presiding Judge of the Appellate Division, wrote the opinion.

The appeal concerned the validity of the Will of Alfred Finocchiaro, Sr. (the “decedent”), who died in Dobson, North Carolina from cardiac arrest on August 18, 2011 at the age of eighty-nine. Id. at *2.  On July 2, 2012, decedent’s son, Frank Finocchiaro admitted his father’s 2007 non-resident Will to probate in Morris County.  Thereafter, on October 16, 2012, Peggy M. O’Dowd, the estranged wife of the decedent’s late son, Alfred, Jr., and his children, Chad, Kelsey, and Nicholas, filed a verified complaint in the Morris County Chancery Division, Probate Part, seeking to nullify the 2007 Will and revoke the letters testamentary issued to Frank. Id.

The case was tried before Judge Stephan C. Hansbury over a two-day period on April 27 and 28, 2015. Id. at *2.  Plaintiffs claimed three grounds for invalidating the decedent’s 2007 Will:  (1) lack of testamentary capacity; (2) undue influence by his son Frank; and (3) improper execution.  Plaintiffs sought to invalidate the 2007 Will and reinstate a Will decedent executed in 2001 that contained specific bequests to Alfred, Jr.’s children, Chad, Kelsey and Nicholas, and the residuary estate to be equally divided between his two sons, Frank and Alfred Jr., per stirpes in fee simple absolute. Id. at *2-3.

Plaintiffs argued that they were “manifestly denied justice” because Judge Hansbury’s factual findings and application of the relevant legal standards were clearly erroneous. Id. at *4.  The Appellate Division disagreed and affirmed substantially for the reasons set forth in the trial court’s oral opinion delivered from the bench on April 29, 2015. Id.

As to the claim for undue influence, the appeals court affirmed the trial court’s finding that there was no evidence to support a claim of undue influence by the defendant Frank. Id. at *18.  The court noted that the plaintiffs had the burden of providing undue influence and undue influence is a form of fraud that must be proven by clear and convincing evidence. Citing In re Niles Trust, 176 N.J. 282, 300 (2003).

The trial court found the decedent’s decision to repudiate the 2001 Will was based primarily on Alfred, Jr.’s suicide, which occurred on December 29, 2006, and the reasons the court believed precipitated it. Id. The trial court found the defendant Frank credible in his statement that the decedent blamed Peggy and the kids for Alfred, Jr.’s suicide. Id. at *19.  Given the nature of the marriage – the TROs, divorce, and lack of contact —  Judge Hansbury found that such blame was a legitimate thought of the decedent. Id. Moreover, it was undisputed that Peggy and her children severed all contact with the decedent immediately after Alfred, Jr.’s suicide. Id.

Thus, the Appellate Division affirmed the trial court’s finding that the decedent was acting under his own volition and the plaintiffs could not prove by clear and convincing evidence that Frank unduly influenced the decedent to disinherit the plaintiffs. Id.

As to the claim for lack of testamentary capacity, the trial court found that the plaintiffs could not prove by clear and convincing evidence that the decedent lacked the testamentary capacity to dispose of his estate at the time he executed the 2007 Will. Id. at *19.  The appellate court noted that the findings of the trial court were entitled to great weight since the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony. Id. at *19-20.  The plaintiffs were required to rebut the presumption that the testator was of sound mind and competent when he executed the will, and the plaintiffs had to satisfy the burden of proof by clear and convincing evidence. Id. at *20.

Judge Hansbury found that the process to execute the 2007 Will took approximately six weeks, which was plenty of time for the decedent to reflect, calm down, and overcome the initial shock of losing his son. Id. at *20.  The evidence presented at trial included expert testimony from Dr. Robert Bock, a family practice physician who treated the decedent in 2005. Id. at *21.  The appellate court noted that there was “no question that the decedent suffered from dementia”, however, both witnesses testified that the decedent had days in which he was able to have “normal” conversations. Id. The appellate court cited the case of Wallhauser v. Rummel, 25 N.J. Super. 358, 366 (App. Div. 1953), and noted that the court has held that a person who may at times lack testamentary capacity may be deemed capable of executing an enforceable will if they have “lucid intervals.” Id. at *21-22.

Thus, the appellate court found no legal basis to disturb Judge Hansbury’s well-reasoned legal conclusion upholding the validity of the 2007 Will. Id. at *22.